IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARY L. SHERMAN,

Plaintiff,

 Civil Action 2:12-cv-738

v. Judge James L. Graham

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

 

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for Award of

Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (ECF No. 18), Defendant’s

Response in Opposition (ECF No. 19), and Plaintiff’s Reply (ECF No. 20). For the reasons that

follow, it is RECOMMENDED that Plaintiff’s Motion be GRANTED, but that the hourly

amount be reduced to the statutory rate of $125 per hour for a fee award in the amount of $2,375.

I.

Plaintiff filed this action on August 16, 2012, seeking review of an adverse decision of

the Commissioner of Social Security (“Commissioner”). (ECF No. 1.) On August 12, 2013, this

Court reversed the Commissioner’s nondisability finding and remanded this case to the

Commissioner and the Administrative Law Judge pursuant to Sentence Four of 42 U.S.C. §

405(g). (ECF No. 16.) 

On September 9, 2013, Plaintiff filed the instant Motion seeking an award of attorney’s

fees under the Equal Access to Justice Act (“EAJA”). (ECF No. 18.) The Commissioner

opposes the Motion on the ground that Plaintiff’s counsel’s requested hourly rate is excessive. 

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(ECF No. 19.) 

II.

Plaintiff seeks an award of attorney’s fees for nineteen (19) hours that her counsel

worked on this case before this Court. The EAJA provides as follows:

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses, in addition to

any costs awarded pursuant to subsection (a), incurred by that party in any civil

action (other than cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in any court having

jurisdiction of that action, unless the court finds that the position of the United States

was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Accordingly, a party will generally be entitled to attorney’s fees

under the EAJA when he or she is the prevailing party and the government’s position was not

substantially justified. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007)

(outlining requirements under the EAJA). The Commissioner “bears the burden of

demonstrating that its position was substantially justified.” Pickering v. Mukasey, 306 F. App’x.

246, 247 (6th Cir. 2009).

The EAJA limits recovery of attorney’s fees to $125 per hour unless the court concludes

that the circumstances justify a higher rate: 

The amount of fees awarded . . . shall be based upon prevailing market rates for the

kind and quality of the services furnished, except that . . . attorney fees shall not be

awarded in excess of $125 per hour unless the court determines that an increase in

the cost of living or a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A). In analyzing the EAJA, the United States Court of Appeals for the

Sixth Circuit has emphasized that the “statutory rate is a ceiling and not a floor.” Chipman v.

Sec’y of Health & Hum. Servs., 781 F.2d 545, 547 (6th Cir. 1986). Furthermore, “[i]n requesting

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an increase in the hourly-fee rate, [p]laintiffs bear the burden of producing appropriate evidence

to support the requested increase.” Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.

2009) (citation omitted). Accordingly, the Sixth Circuit has held that “Plaintiffs must ‘produce

satisfactory evidence—in addition to the attorney’s own affidavits—that the requested rates are

in line with those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895

n.11 (1984)).

In determining the appropriate rate, the Court may allow for a cost of living adjustment to

justify an award in excess of $125 per hour. See Begley v. Sec’y of Health & Hum. Servs., 966

F.2d 196, 199 (6th Cir. 1992). The determination of whether a cost of living increase justifies a

fee in excess of the $125 rate is left to the Court’s discretion. Id. It is not sufficient, however,

that a party submit only the Department of Labor’s Consumer Price Index and argue that

inflation justifies an increase in fees. Bryant, 578 F.3d at 450.

III.

A. Hourly Rate

Plaintiff seeks an award of attorney’s fees in the amount of $3,536.49 for nineteen (19)

hours that her counsel, Mr. Eric Cole, worked on this case before this Court. (Pl.’s Mot. 1, ECF

No. 18.) The Commissioner does not contend that her position was substantially justified or that

Plaintiff was not the prevailing party within the meaning of the EAJA. Nor does she contest the

timeliness of Plaintiff’s Motion1

 or the reasonableness of the number of hours Plaintiff’s counsel

1

Defendant notes that Plaintiff prematurely filed her Motion in that it predated the

expiration of the Commissioner’s appeal time. Defendant does not, however, formally object to

timeliness in light of the fact that the Commissioner chose not to appeal. 

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worked on this case. The Commissioner’s sole objection relates to the reasonableness of the

hourly rate Plaintiff seeks to recover. (Def.’s Opp. 3–5, ECF No. 19.) Specifically, the

Commissioner argues that the requested hourly rate Plaintiff seeks, which calculates to a rate of

$186.13 per hour, is excessive. (Id.)

In support of the requested hourly rate, Plaintiff has submitted an excerpt from an hourly

billing rate survey for the State of Ohio conducted by the Ohio State Bar Association (“OSBA”)

and her counsel’s affidavit. The study reflects that the 2012 mean billing rate in the Downtown

Columbus area, which is where Plaintiff’s counsel practices, was $275 per hour. (ECF No. 18-

4.) The study also shows that the 2012 mean billing rate for firms in Ohio with three to six

attorneys, which is the size of Plaintiff’s counsel’s firm, was $220 per hour; the 2012 mean

billing rate in Ohio for attorneys with more six to ten years experience, which reflects Plaintiff’s

counsel’s experience, was $200 per hour; and the mean billing rate for counsel specializing in

social security practice area is $250. (Id.) This study constitutes appropriate evidence

supporting the increase Plaintiff seeks. Plaintiff’s counsel’s affidavit testimony, however,

undermines the requested rate increase. Specifically, Plaintiff’s counsel’s affidavit provides, in

relevant part, as follows: “If I were to have an hourly billing rate, based on my training and

experience, I would have an hourly rate of $125.” (Cole Aff. ¶ 5, ECF No. 18-2.) Further,

Plaintiff has failed to support her fee petition with affidavits from other members of the local bar

that contradict her counsel’s testimony that $125 is an appropriate rate based upon his years of

experience, training, and practice area. Cf. Cowan v. Comm’r of Soc. Sec., No. 1:121-cv-186,

2013 WL 5487364, at *3 (S.D. Ohio Sept. 30, 2013) (“[I]n order to obtain a higher rate for a

social security appeal than that specified by statute, a [p]laintiff must present ‘additional proof

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such as affidavits from other members of the local bar in which they testify as to their years of

experience, skill, and reputation, and thus their consequent hourly rate.’”) (quoting Zellner v.

Astrue, No. 1;10-cv-812, 2012 WL 273937, at *3 (S.D. Ohio Jan. 31, 2012) (internal quotation

marks and citation omitted). In sum, the Undersigned concludes that Plaintiff has failed to carry

her burden to support the requested increase in light of her counsel’s testimony that his billing

rate would be $125 per hour based upon his training and experience, particularly in the absence

of affidavits from other members of the local bar that contradict this testimony. Cf. Wise v.

Astrue, No. 1:09-cv-355, 2010 WL 5071040, at *2 (S.D. Ohio Dec. 7, 2010) (Marbley, J.)

(declining to award to increased rate to Mr. Cole where the plaintiff offered the Department of

Labor’s Consumer Price Index and Mr. Cole’s affidavit in support of the rate increase, and Mr.

Cole’s affidavit stated that he did not have an hourly rate, but that if he did, based upon his

experience and training, it would be $125 per hour). 

B. Proper Recipient of Attorney Fees Under EAJA

Plaintiff requests that the fees be paid directly to her attorney; Defendant requests that

any award be paid directly to Plaintiff. In Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 2524

(2010), a social security case considering the Commissioner’s payment of attorney’s fees under

the EAJA, the Supreme Court held that “a § 2412(d) fees award is payable to the litigant and is

therefore subject to a Government offset to satisfy pre-existing debt that the litigant owes the

United States.” Ratliff, 130 S.Ct. at 2524. The Ratliff Court noted that “the Government has

since continued the direct payment practice only in cases where the plaintiff does not owe a debt

to the [G]overnment and assigns the right to receive the fees to the attorney.” Id. at 2529.

Here, the Court is unaware of whether Plaintiff owes a debt to the United States. Thus,

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the Undersigned finds that under Ratliff, the proper course is to award fees directly to Plaintiff

and remain silent as to the direction of those fees. See Simpson v. Astrue, No. 3:09-cv-143, 2010

WL 5088128, at *5 (S.D. Ohio Nov. 17, 2010) (Merz, M.J., Report and Recommendation

subsequently adopted) (quoting Preston v. Astrue, No. 3:08-cv-991, 2010 WL 3522156, at *2

(M.D. Fla. Sept. 8, 2010) (“Because it is not known in the present case whether or not Plaintiff

owes a debt to the United States, ‘[i]n light of Ratliff, . . . it [is] a better practice to simply award

the EAJA fees directly to Plaintiff as the prevailing party and remain silent regarding the

direction of payment of those fees. It is not the duty of the Court to determine whether Plaintiff

owes a debt to the government that may be satisfied, in whole or in part, from the EAJA fees

award.’”). The Undersigned notes, however, that if Plaintiff does not owe such a debt to the

United States, the Government should honor an assignment of Plaintiff’s of EAJA fees to her

counsel. See Ratliff, 130 S.Ct. at 2530 (Sotomayor, J., concurring) (“[T]he litigant’s obligation

to pay her attorney is controlled not by the EAJA but by contract and the law governing that

contract.”); Bishop v. Astrue, No. 3:08CV00375, 2010 WL 4279185, at *4 (S.D. Ohio Sept. 29,

2010) (Ovington, M.J., Report and Recommendation subsequently adopted) (“The Government

retains the discretion and authority to determine whether Plaintiff owes a debt to it . . . . If no

such unpaid debt exists, or if the EAJA fees remain after a government offset, there appears no

reason on the present record for the Government not to honor Plaintiff’s assignment . . . .”). 

IV.

In sum, Plaintiff has failed provided satisfactory evidence to support her counsel’s

requested rate of $186.13 per hour. It is, therefore, RECOMMENDED that Plaintiff’s Motion

be GRANTED, but that the hourly amount be reduced to the statutory rate of $125 per hour for a

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fee award under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the amount of $2,375. 

(ECF No. 18.) It is further RECOMMENDED that the Court issue no order regarding the

direction such fees must be paid. 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: October 21, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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